Vivid has taken the first steps by the porn industry to protect their content using the courts, following in the footsteps of Hollywood and the record labels. The adult-film producer is suing the companies behind PornoTube for copyright infringement. Vivid is making the same argument as Viacom has against Google's YouTube — with one significant exception that may have broad consequences for porn on the Web.

PornoTube, like YouTube, purports to respect copyright but hides behind the provision of the Digital Millennium Copyright Act, which places the burden on copyright holders to report offending material. Vivid's attorney, Paul Cambria, thinks that is unfair: "Vivid should not have to take responsibility for policing PornoTube on a minute-by-minute basis to protect its rights." Viacom makes much the same argument, and won concessions from Google on that point recently.

But Vivid is also making the additional claim that PornoTube is violating the federal Child Protection and Obscenity Enforcement Act. Accusing PornoTube of violating the Child Protection Act is interesting because the requirements PornoTube is alleged to be violating were recently overturned. An appeals court ruled that requiring "secondary producers" of sexual content to record personal information for online video's so-called "performers" was onerous and unconstitutional. However, the judges expressed the view that the requirements could be legal if "secondary producer" was properly defined.

As a primary producer of porn, Vivid already complies with these "2257" requirements. Still, why would any porn operation seek greater regulation of its trade? Perhaps so. Vivid specializes in high-production-values, long-form porn. Anything that makes life harder for amateur competitors may serve the pros well. As for its customers? They just want things harder.